Citation Nr: 0920799
Decision Date: 06/03/09 Archive Date: 06/09/09
DOCKET NO. 05-34 729 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to an initial disability rating in excess of
30 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. J. Wells-Green, Counsel
INTRODUCTION
The Veteran served on active duty from May 1966 to February
1971.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from February 2005 and May 2005 rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri. In June 2008 the Board remanded the
case for further development. The requested development has
been completed and the case has been returned to the Board
for further appellate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained.
2. Current bilateral hearing loss is not etiologically
linked to the Veteran's service or any incident therein.
3. Any currently diagnosed tinnitus is not etiologically
linked to the Veteran's service or any incident therein.
4. The veteran's service-connected PTSD is manifested by
symptoms including depression, sleep disturbance, nightmares,
intrusive thoughts, irritability, shame and social isolation
that result in occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks, but do
not cause occupational and social impairment, with reduced
reliability and productivity; there is no evidence of
circumstantial, circumlocutory, or stereotyped speech, panic
attacks, difficulty understanding complex commands, impaired
judgment, impaired abstract thinking or difficulty
establishing and maintaining effective work and social
relationships attributed to his PTSD alone.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in active service
and may not be presumed to have been incurred therein. 38
U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.385 (2008).
2. Tinnitus was not incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.303 (2008).
3. The criteria for an initial disability rating in excess
of 30 percent for PTSD have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1),
4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties To Notify And Assist
When VA receives a complete or substantially complete
application for benefits, it is required to notify the
claimant and his representative, if any, of any information
and medical or lay evidence that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183
(2002). Specifically, VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide that
pertains to the claim. 38 C.F.R. § 3.159, as amended,
73 Fed. Reg. 23353-56 (Apr. 30, 2008); see Pelegrini v.
Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
This notice must be provided prior to an initial unfavorable
decision by the agency of original jurisdiction (AOJ).
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini II, 18 Vet. App. at 119.
Further, upon receipt of an application for a service-
connection claim, VA is required to review the evidence
presented with the claim and to provide the Veteran with
notice of what evidence not previously provided will help
substantiate his/her claim. Dingess v. Nicholson, 19 Vet.
App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b). Specifically, VA must notify the Veteran of what
is required to establish service connection and that a
disability rating and effective date for the award of
benefits will be assigned if service connection is awarded.
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the claim for service connection has been
substantiated, and any defect in the notice regarding that
claim was therefore not prejudicial to the claim. See
Dingess, 19 Vet. App. at 491. In such cases, where the
appellant then files a notice of disagreement (NOD) with the
initial rating and/or the effective date assigned, he/she has
initiated the appellate process and different, and in many
respects, more detailed notice obligations arise, the
requirements of which are set forth in sections 7105(d) and
5103A of the statute. Id., see also Goodwin v. Peake, 22
Vet. App. 128 (2008); 38 U.S.C.A. § 5103(A), 7105(d).
Prior to the initial adjudication of the Veteran's claims for
service connection in February 2005 in this case, the RO sent
the Veteran a letter, dated in November 2004, which satisfied
the duty to notify provisions except that it did not inform
him how disability ratings and effective dates would be
assigned should service connection be granted. The Veteran
was provided with notice of how VA determines disability
ratings and effective dates in a March 2006 notice letter,
after the RO had already granted service connection for PTSD
in a May 2005 rating decision. Nevertheless, because the
claim for service connection for PTSD had been granted, the
defect in the timing of the notice about how disability
ratings and effective dates would be determined was harmless
error as to this claim. Dingess, 19 Vet. App. at 491;
Goodwin, 22 Vet. App. at 137.
In addition, by the time the March 2006 notice letter had
been sent, the Veteran had already submitted an NOD with the
initial disability rating assigned his PTSD, triggering the
notice obligations set forth in sections 7105(d) and 5103A of
the statute. The RO then fulfilled these notice obligations
by issuing an October 2005 statement of the case (SOC) and
March 2007, August 2008 and February 2009 supplemental
statements of the case. These documents informed the Veteran
of the regulations pertinent to his appeal, including the
applicable rating criteria, advised him of the evidence that
had been reviewed in connection with his appeal, and provided
him with reasons for its decision. 38 U.S.C.A. § 7105(d).
Accordingly, the Board concludes that the notice obligations
set forth in sections 7105(d) and 5103A of the statute have
been fulfilled in this case.
VA has secured or attempted to secure all relevant
documentation to the extent possible. Service treatment
records, VA medical examination reports and treatment records
are of record. This evidence was reviewed by both the RO and
the Board in connection with the Veteran's claims. Although
the Veteran has identified outstanding records from the
Social Security Administration (SSA), in correspondence dated
in July 2008, SSA indicated that the medical records
requested by VA had been destroyed. Based on the foregoing,
it is clear that further requests for SSA medical records for
the veteran would be futile. There remains no issue as to
the substantial completeness of the Veteran's claims.
38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R
§§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on VA,
including the duty to assist and to provide notification, has
been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002);
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006);
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006);
Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007).
Analysis
Service Connection
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Some chronic diseases are presumed to have been incurred in
service, although not otherwise established as such, if
manifested to a degree of ten percent or more within one year
of the date of separation from service. 38 U.S.C.A.
§ 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A.
§ 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable
chronic diseases, including organic diseases of the nervous
system).
Impaired hearing will be considered a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least 3 of the frequencies 500,
1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater;
or when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385.
In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held
that if the record shows (a) acoustic trauma due to
significant noise exposure in service and audiometric test
results reflecting an upward shift in tested thresholds in
service, though still not meeting the requirements for
"disability" under 38 C.F.R. § 3.385, and (b) post-service
audiometric testing produces findings meeting the
requirements of 38 C.F.R. § 3.385, VA must consider whether
there is a medically sound basis to attribute the post-
service findings to the injury in service, or whether they
are more properly attributable to intercurrent causes.
Hensley, 5 Vet. App. at 159.
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990). When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the benefit of the doubt
shall be given to the claimant. 38 U.S.C.A. § 5107(b). When
a reasonable doubt arises regarding service origin, such
doubt will be resolved in the favor of the claimant.
Reasonable doubt is doubt which exists because of an
approximate balance of positive and negative evidence which
does not satisfactorily prove or disprove the claim.
38 C.F.R. § 3.102. The question is whether the evidence
supports the claim or is in relative equipoise, with the
claimant prevailing in either event, or whether a fair
preponderance of the evidence is against the claim, in which
event the claim must be denied. See Gilbert, 1 Vet. App. at
54.
The Veteran contends that he currently has bilateral hearing
loss and tinnitus as a result of his in-service exposure to
noise as he was exposed to rifle fire, machine gun fire,
mortar and artillery fire in combat. He states that his
bilateral hearing loss and tinnitus began while he was in
service. The Veteran's representative argues that even
though the Veteran's audiometric test results at the time of
his discharge from service do not meet the requirements to
establish hearing loss, he can establish service connection
by submitting competent evidence that his current hearing
loss is causally related to service. The representative also
contends that the Veteran is competent to state when the
ringing in his ears had its onset.
The Board acknowledges that the Veteran is competent to give
evidence about what he experienced; i.e., that he was exposed
to loud noise in service and that he has had bilateral
hearing loss and tinnitus since service. Charles v.
Principi, supra. (finding the veteran competent to testify to
symptomatology capable of lay observation); Layno v. Brown, 6
Vet. App. 465, 469 (1994) (noting competent lay evidence
requires facts perceived through the use of the five senses).
However, as a layman without proper medical training and
expertise, the Veteran is not competent to provide probative
medical evidence on a matter such as the diagnosis or
etiology of a claimed medical condition. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992). Moreover,
competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may
affect the credibility of testimony, it does not affect
competency to testify.").
The Board observes that the service treatment records show no
relevant complaints, findings, treatment or diagnoses for
bilateral hearing loss or tinnitus. Moreover, the Veteran's
separation examination, performed in February 1971, included
an audiological evaluation, which revealed pure tone
thresholds, in decibels, as followed:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
5
10
LEFT
0
0
0
5
5
There is no evidence that the Veteran sought treatment for
bilateral hearing loss or tinnitus prior to his initiation of
this claim in September 2004. The evidence of record shows
he was initially diagnosed with tinnitus during the December
2004 VA audiological examination.
While the evidence of record reveals that he currently
suffers from bilateral hearing loss and tinnitus, the Board
finds that preponderance of the competent evidence of record
does not etiologically link the Veteran's current bilateral
hearing loss or tinnitus disability to his service or any
incident therein. In fact, the December 2004 VA audiological
examiner, while noting the Veteran's stated history of in-
service exposure to loud noise and that he first noticed
ringing in his ears while he was in boot camp during firing
at the fire range, opines that it is not at least as likely
as not that the Veteran's bilateral hearing loss or tinnitus
is related to his military noise exposure, noting that the
Veteran's hearing was normal at the time of both his
enlistment and separation examinations evidencing an absence
of acoustic damage, and that there is no documented reports
of hearing loss or tinnitus during his military service. The
examiner further opines that the Veteran's hearing loss and
tinnitus is more likely related to occupational and aging
factors. There is no medical opinion of record etiologically
linking his current bilateral hearing loss and tinnitus to
his service or his acoustic trauma in service. As noted
above, the medical evidence of record indicates that the
Veteran was not treated for any relevant complaints
associated with bilateral hearing loss or tinnitus in service
and the objective evidence indicates that he was initially
diagnosed with bilateral hearing loss and tinnitus in
December 2004, some 33 years after his discharge. The Board
finds this gap in time significant, and it weighs against the
existence of a link between the Veteran's disabilities and
his time in service. Cf. Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000) (holding, in an aggravation context,
that the Board may consider a prolonged period without
medical complaint when deciding a claim). Further, VA
requested the Veteran submit evidence etiologically linking
his current bilateral hearing loss and tinnitus to his
service or any incident therein. However, he has not
submitted any medical evidence etiologically linking his
current bilateral hearing loss and tinnitus to service or any
in-service noise exposure.
Despite the Veteran's representative's contentions that his
December 2004 VA audiological examination was inadequate, the
Board finds that the reported findings in the examination
report are sufficiently detailed with recorded history,
clinical findings, and pertinent diagnoses. In particular,
the examiner did note the Veteran's history of in-service
acoustic trauma and did not discount his history as the
Veteran alleges. Therefore, the Board finds that the
December 2004 VA examiner did not fail to address this issue
in noting that the Veteran's hearing was normal at the time
of his separation examination. As such, the Board finds that
additional development by way of another examination would be
redundant and unnecessary.
The Board finds that the service treatment records are more
contemporary to the time the Veteran alleges he first
experienced bilateral hearing loss and tinnitus and are of
more probative value than his current recollections, given
many years later. Moreover, the February 1971 separation
examination report shows that clinical evaluation of his ears
and drums was normal and audiometric examination as reported
above was within normal limits. Therefore, the Board
determines that the preponderance of the evidence is against
service connection for bilateral hearing loss and tinnitus.
38 U.S.C.A. § 5107(b). The appeal is denied.
Initial Increased Disability Rating
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4. The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. 38 C.F.R. § 4.7.
Where a Veteran appeals the initial rating assigned for a
disability when a claim for service connection for that
disability has been granted, evidence contemporaneous with
the claim for service connection and with the rating decision
granting service connection would be most probative of the
degree of disability existing at the time that the initial
rating was assigned and should be the evidence "used to
decide whether an [initial] rating on appeal was
erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126
(1999). If later evidence obtained during the appeal period
indicates that the degree of disability increased or
decreased following the assignment of the initial rating,
"staged" ratings may be assigned for separate periods of
time based on facts found. Id.
The Veteran's service-connected PTSD is currently rated as 30
percent disabling under 38 C.F.R. § 4.130, Diagnostic Code
9411. Under this code, a 30 percent rating is assigned when
there is occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). A 50 percent
rating is warranted for occupational and social impairment
with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent rating is warranted for
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. A 100 percent rating is
granted for total occupational and social impairment, due to
such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation or own name.
VA treatment records, dating from June 2004 to March 2007,
show the Veteran complained primarily of depression,
difficulty sleeping, nightmares, social isolation, intrusive
thoughts and memory problems. He was initially diagnosed
with PTSD in April 2005. Thereafter, private treatment
records and evaluations indicate diagnoses including
depressive disorder and alcohol abuse in sustained remission
in addition to PTSD. GAF scores during this entire period
were generally assessed between 51 and 55, with the exception
of an August 2006 treatment record indicating a GAF of 50 and
a November 2007 treatment record showing a GAF of 65, and a
June 2008 treatment record showing a GAF of 60. The August
2006 treatment record shows the Veteran was experiencing
nightmares, flashbacks, insomnia and anger. He had not been
receiving medication for his symptoms at that time. He
appeared depressed and slightly unkempt with speech decreased
in rate and rhythm. However, he was mostly coherent and
logical with goal-directed thought processes and denied
hallucinations, suicidal or homicidal ideations at that time.
A February 2007 treatment record notes the Veteran had been
"doing poorly" and that he had lost 24 pounds and had
undergone several surgeries. The report indicates that the
Veteran's distorted thinking related to guilt and culpability
was challenged. The diagnosis was severe PTSD.
In April 2005, the Veteran underwent VA psychiatric
examination. At that time he complained of having intrusive
ideation and being avoidant of reminders of his military
experiences and of feelings correlated with his memories. He
also complained of increasing irritability and denied
socialization with people. While he did not actively
remember having dreams, his wife stated that he did on
several occasions. Examination results revealed the Veteran
to have "slipshod" grooming that was not grossly defective.
His hygiene was adequate and his speech was within normal
limits for flow, rate and tone. He did not report psychotic
symptoms and none were elicited during the examination. His
thinking was generally linear and goal-directed and his
affect was restrained, but showed reasonable range except
during periods of lability. He was oriented in all spheres,
with no gross memory deficits. His mental control was
slightly slow and a little bit uneven, but not grossly
defective. Concentration was difficult for him. His
judgment and impulse control were found to be fair to good.
His insight was limited. His ability to abstract was fair
and mostly at the functional level. The diagnosis was PTSD,
and the assessed GAF score was 53. The examiner further
opined that the Veteran's PTSD was of moderate severity.
The Veteran again underwent VA psychiatric examination in
March 2007. While he denied nightmares, he did report dreams
of his Vietnam experiences on a nightly basis. He also
reported a sense of shame for his actions and sleep
disruption and hypervigilance on awakening. He denied having
close friends and was aloof and asocial. He did not attend
social gatherings, church or religious gatherings.
Examination revealed the Veteran's grooming and hygiene to be
within normal limits. He retained recall of 4 digits;
however, he struggled with reversing the sequence of 5
digits. Concentration deficits were attributed to a prior
CVA. There was no evidence of any formal thought disorder
and his communication skills were within normal limits. The
examiner specifically noted that no stuttering was evident
during the examination. There was also no evidence of
clinically significant dissociations or hallucinations.
There was no evidence of suicidal or homicidal ideation. He
had intrusive memories focused on the trauma he experienced
during active duty. His mood appeared very bland, flat and
numb. He reported that he got nervous in crowds, but did not
describe panic attacks. The examiner found the Veteran's
insight and judgment to be sufficient and that he had good
impulse control. The diagnosis was chronic PTSD with an
assessed GAF score of 51 based on his PTSD symptoms alone,
which reflected flat affect, no social contacts, few friends,
and moderate symptoms such as anxiety dreams. The examiner
opined that the Veteran's ability to tolerate/sustain
employment was moderately compromised by these functional
impairments. The examiner also opined that his personal and
domestic life is delimited to his wife because of functional
impairments
The Board finds that the overall disability picture does not
more closely approximate the criteria for an initial 50
percent rating under Code 9411. 38 C.F.R. § 4.7.
Specifically, the medical evidence is negative for
circumstantial, circumlocutory, or stereotyped speech; panic
attacks; impaired cognition as a result of his PTSD symptoms,
judgment, or abstract thinking. Although the Veteran reports
frequent nightmares, sleep disturbance, intrusive thoughts
and shame and guilt for his actions in service, and the
objective evidence indicates he experiences sleep
disturbance, depressed mood, intrusive thoughts and frequent
nightmares, and that he also experienced social isolation,
the overwhelming objective evidence does not support the
conclusion that it significantly impacts his ability to work.
Several VA treatment records show that the Veteran has been
unemployed for many years and receiving SSA disability as a
result of an enlarged heart. The March 2007 VA examiner also
notes the Veteran had a CVA 5 years prior to the examination.
Moreover, the objective psychiatric examinations do not show
evidence of sustained social and occupational impairment due
to his PTSD symptoms alone which would support a higher
evaluation. In this respect, the Board acknowledges the
August 2006 VA treatment record showing a GAF score of 50
indicative of serious symptoms and the February 2007
treatment record indicating the Veteran's diagnosed PTSD was
severe. However, there is no evidence of significantly
reduced reliability or productivity resulting from his
diagnosed PTSD alone. Although he is socially isolated from
most, he has remained married to his 2nd wife for over 20
years and the duration of his appeal. There is no other
evidence of social impairment that would warrant an increased
evaluation. Moreover, social impairment alone may not be a
basis for the disability rating. 38 C.F.R. § 4.126(b).
Further, the objective findings reported on mental status
examination, including coherent thought process, and adequate
communication with no delusions or hallucinations, do not
support the conclusion that the disability is of the severity
contemplated for a 50 percent evaluation under Code 9411.
In reaching this conclusion, the Board takes note of the
various GAF scale scores. The GAF is a scale reflecting the
psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness. See
Diagnostic and Statistical Manual of Mental Disorders (4th
ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995).
For example, GAF scores ranging between 61-70 reflects some
mild symptoms (e.g., depressed mood and mild insomnia) or
some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some
meaningful interpersonal relationships. GAF scores ranging
between 51-60 reflects moderate symptoms (e.g., flat affect,
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers). GAF
scores ranging between 41 and 50 are meant to indicate
serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in
social, occupational, or school functioning (e.g., no
friends, unable to keep a job). An examiner's classification
of the level of psychiatric impairment at the moment of
examination, by words or by a GAF score, is to be considered,
but it is not determinative of the percentage VA disability
rating to be assigned; the percentage evaluation is to be
based on all the evidence that bears on occupational and
social impairment. See 38 C.F.R. § 4.126 (2004); see also
VAOPGCPREC 10-95 (Mar. 31, 1995) (cited at 60 Fed. Reg.
43,186 (Aug. 18, 1995)).
Although the August 2006 treatment record shows the Veteran
was assessed with a GAF score of 50, indicating serious
symptoms, this is the only GAF assessment of record
indicating serious symptoms and the assessment was during his
initial assessment for treatment and prior to medications
being prescribed for treatment. Moreover, the majority of
his GAF scores for this period range from 51 to 55, denoting
moderate symptoms or impairment in social, occupational or
school functioning. Thus, the Board finds that the
assignment of an initial disability rating in excess of 30
percent is not warranted.
But more importantly, the objective findings regarding the
Veteran's psychiatric symptoms on mental status examination,
including coherent thought process, without objective
evidence of flattened affect, circumlocutory or stereotyped
speech, frequent panic attacks, impaired judgment, or
impaired abstract thinking do not support the conclusion that
the disability is of the severity contemplated for a 50
percent evaluation, under DC 9411. Moreover, although the
objective medical evidence of record does indicate speech
impairment and some concentration deficits, these symptoms
have been associated with a prior CVA and not the Veteran's
PTSD.
In reaching this conclusion, the Board acknowledges the
Veteran's belief that his PTSD symptoms are more severe than
the current disability rating reflects and that he has
difficulty understanding complex commands, and memory
impairment as a result of these symptoms as well as an
inability to drive as a result of slowed reflexes. However,
the Board finds more probative the VA examiner's psychiatric
opinion in the March 2007 VA examination report. Initially,
the VA examiner reviewed the Veteran's claims file as well as
examined him and noted his relevant history and complaints.
Further, the VA examiner, provided a GAF score, based solely
on the veteran's service-connected PTSD symptoms. See
Nieves-Rodriguez v. Peake, No. 06-3012 (U.S. Vet. App. Dec.
1, 2008) (a medical opinion may not be discounted solely
because the examiner did not review the claims file).
Finally, while the Veteran is competent to provide evidence
of visible symptoms, he is not competent to provide evidence
that requires medical knowledge. See Espiritu v. Derwinski,
2 Vet. App. 492 (1992). For these reasons, the Board finds
that the preponderance of the evidence is against a
disability rating greater than 30 percent for PTSD. 38
C.F.R. § 4.3. The appeal is denied.
In reaching this decision, the potential application of
various provisions of Title 38 Code of Federal Regulations
have been considered, whether or not they were raised by the
veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In
particular, the Board has considered the provisions of 38
C.F.R. § 3.321(b)(1). In this case, however, there has been
no showing that the Veteran's service-connected PTSD has
caused marked interference with employment beyond that
contemplated by the schedule for rating disabilities,
necessitated frequent periods of hospitalization, or
otherwise renders impractical the application of the regular
schedular standards utilized to evaluate the severity of his
disability. In the absence of such factors, the Board finds
that the requirements for an extraschedular evaluation for
the Veteran's service-connected PTSD under the provisions of
38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown,
9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218
(1995); Thun v. Peake, 22 Vet. App. 111 (2008).
The Board has also considered the doctrine of reasonable
doubt. However, as the preponderance of the evidence is
against the Veteran's claim, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
An initial disability rating in excess of 30 percent for PTSD
is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs